Lemus v. County of Merced

Filing 5

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 2 Motion to Proceed In Forma Pauperis signed by Magistrate Judge Gary S. Austin on 1/6/2015. Objections to F&R's due within fifteen (15) days of service.(Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-02030-KJM-GSA

NOEL LEMUS,

v.
COUNTY OF MERCED and
DEFENDANT OFFICER DOES 1
THROUGH 50,

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Defendant.

FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS

(Doc. 2)

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I.

INTRODUCTION
Plaintiff Noel Lemus (“Plaintiff”), represented by counsel, filed this action on December

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19, 2014 (Doc. 1) and requests to proceed in forma pauperis (“IFP”) (Doc. 2). For the reasons that

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follow, the undersigned RECOMMENDS that Plaintiff’s application be DENIED.

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II.

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DISCUSSION
a. Legal Standard

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An indigent party may be granted permission to proceed “in forma pauperis” after

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submitting an affidavit showing his or her inability to pay the requested fees. 28 U.S.C. § 1915(a).

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The determination whether a party can proceed IFP is a “matter within the discretion of the trial

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court and in civil actions for damages should be allowed only in exceptional circumstances.”

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Schweitzer v. Scott, 469 F.Supp. 1017, 1019 (C.D. Cal. 1979), quoting Weller v. Dickinson, 314
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F.2d 598, 600 (9th Cir. 1963) (“a court should be more willing to entertain an application of this

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nature in a criminal proceeding, or a Title VII proceeding, than, say, in a civil action for money

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damages”). When examining an application for IFP status, “even-handed care must be employed

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to assure that federal funds are not squandered to underwrite, at public expense, either frivolous

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claims or the remonstrances of a suitor who is financially able, in whole or in material part, to

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pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D. R.I. 1984) (“petitioners with

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modest cash reserves are not paupers within the intendment of 28 U.S.C. § 1915(a) for the

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purpose of filing fees, initial service of process costs and the like”).

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b. Plaintiff Does Not Qualify Under 28 U.S.C. § 1915(a)
Plaintiff represents that, until June 2014, he was employed by the City of Gilroy and

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earned over $9,000 per month. Up until October 23, 2014, he was also receiving biweekly

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payments of $2,145 for worker’s compensation. His wife, who is currently employed by the

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Gilroy Unified School District, earns $2,859 per month. Notably, Plaintiff also maintains at least

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two separate bank accounts, but declines in his application to state the current balance in either

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account. (Doc. 2.) The only currently existing debts burdening plaintiff are a Capitol One charge

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card with a balance of $1,500 (requiring a monthly payment of $150) and a Xerox credit line with

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a balance of $6,000 (requiring a monthly payment of $145). Id.

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Based on these representations, the Court finds that Plaintiff is not entitled to proceed

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without prepayment of the $400 filing fee. Up until October 2014 (just two months before this

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suit was filed), Plaintiff and his wife were receiving over $6,000 per month (2 biweekly payments

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of $2,145 plus a monthly salary of $2,859). These facts, coupled with Plaintiff’s relative lack of

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significant debt, do not support his application.

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Notably, Plaintiff does not state the balance of either of his two bank accounts in his

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request for IFP status, another factor that weighs against the grant of the application. U.S. v.

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Shadley, No. 2:09-MC-80 WBS GGH, 2010 WL 2509910, at *1 (E.D. Cal. June 17, 2010)

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(denying request to proceed IFP where applicant “failed to adequately document her financial

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status”).

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In sum, very little suggests that this case should fall within the “exceptional
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circumstances” justifying IFP status.

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RECOMMENDATION

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Based on the foregoing, the Court recommends that:

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1. Plaintiff’s Application to Proceed In Forma Pauperis be denied; and,

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2. Plaintiff be required to submit the filing fee of $400.

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These findings and recommendations will be submitted to the Honorable Kimberly J.

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Mueller pursuant to the provisions of Title 28 of the United States Code section 636(b)(1). Within

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fifteen (15) days after being served with these findings and recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

January 6, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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